Koopmans: No justice in police hunches, hindsight

Perhaps no other aspect of criminal justice grates on people more - or makes them think judges are soft on crime and light on brains - than when courts throw out evidence and chastise police for getting it.

And on the surface, who can blame people for shaking their heads? It's hard to imagine how or why judges can ignore drugs and guns found in the possession of hardened criminals, and question the behaviour of those trying to keep our streets safe.

There is an answer, however. Justice does not like hunches, and hindsight never sets right questionable decisions made in the moment.

A case in Kamloops this week highlights the point. Ryan Ellison, 29, was known to Kamloops police. He has a criminal record fuelled by addictions to drugs.

Police saw Ellison on the street and decided to question him. They found crystal meth, brass knuckles and a sawed-off pistol in his pockets. Bad stuff, to say the least. The man was arrested and was held in custody pending a bail hearing.

In court Thursday, B.C. Supreme Court Justice Hope Hyslop released Ellison on bail, largely because the Crown's case against Ellison was based on evidence she said was likely to be found inadmissible at a trial.

Why? The arresting officers lacked sufficient grounds to question Ellison in the first place. They had a "hunch" that Ellison was up to no good, likely based on the fact that Ellison has often been up to no good in the past.

Their investigation was sparked by his appearance - not his actions..

So what's the problem with that, some might wonder? If the guy is a bad ass, why should we not keep a watchful eye on the man? Especially since - as was proved most recently - he is still capable of criminal acts?

This is a big-picture philosophical question that addresses the kind of country we want to live in. Such judicial acts are made with the good of society in mind.

Our courts have decisively said Canada is not a police state. Those are strong words. When we think of police states, we think of third-world countries and dictatorships, not democratic leaders like Canada.

But the kind of thinking that leads to totalitarian regime is slippery. The first step down the slope could well be a willingness to allow police officers the ability to act on mere suspicion, essentially giving them the ability to search anyone they like.

The issue in cases like this is not whether Ellison was subjected to unwarranted scrutiny, but that allowing it to happen will open the possibility that any one of us could be subjected to similar treatment.

Imagine walking down a street at night wearing your scruffiest jean jacket and having two officers approach and subject you to a pocket search and probing questions. Perhaps there have been break-ins in the area recently and they see you as a possible perpetrator, for no other reason than you look scruffy and happen to be in the area. Does that feel right? Does that make you feel safe? Anyone will be made to feel nervous and uncomfortable in such situations. There is no freedom if citizens can be subject to the state's power at the arbitrary discretion of its agents. The exercise of power must be restrained.

In Canada, judges are the leash on state power that might otherwise run loose.